How does the AIA affect the on-sale bar in patent law?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

The America Invents Act (AIA) made significant changes to the on-sale bar in patent law. According to MPEP 2152.02(d):

“The pre-AIA on sale bar is not limited to sales or offers for sale that make the invention available to the public… [Under AIA] the sale must make the invention available to the public.”

Key changes brought by the AIA include:

• Public Availability Requirement: Under the AIA, the on-sale activity must make the invention available to the public to trigger the bar.
• Grace Period: The AIA provides a one-year grace period for disclosures made by the inventor or derived from the inventor.
• First-to-File System: The AIA shifted the U.S. patent system from first-to-invent to first-to-file, affecting how the on-sale bar is applied.

These changes aim to harmonize U.S. patent law with international standards and provide more clarity on what constitutes prior art. However, the interpretation of “available to the public” in the context of sales is still evolving through case law.